DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, LUCKNOW
CASE No.630 of 2004
Sri Amit Pathak, aged about 30 yrs.,
S/o Sri Yogesh Nath Pathak,
R/o 22, Manas Nagar,
Lucknow.
Present Address:- 3/305, Vishwas Khand,
Gomti Nagar, Lucknow.
……Complainant
Versus
1. Tata Engineering Customer Support,
Passenger Car Business Unit,
KD-Block, Pimpri, Pune- 411018.
2. Tata Engineering, Marketing and Customer Support,
Passenger Car Business Unit 26th Floor Centre No.1,
World Trade Centre, Cuffe Parade, Mumbai-400005.
3. Gold Rush Sales and Service Ltd.
6-A, Sapru Marg, Lucknow.
4. Gold Rush Sales & Service Ltd.
2A & B, HAL Ancillary Estate,
Opp. SBI Ismailganj, Faizabad Road,
Lucknow.
.......Opp. Parties
Present:-
Sri Vijai Varma, President.
Smt. Anju Awasthy, Member.
JUDGMENT
This complaint has been filed by the Complainant against the OPs for directing the OPs to provide a new car in place of the old one and for payment of compensation of Rs.50,000.00 and cost of litigation.
The case in brief of the Complainant is that he purchased a new car marketed by the OP No.3 who is the authorized seller at Lucknow. After getting the same purchased it was registered as UP32 AX2626 on 12.09.2003
-2-
with the registration authority at Lucknow. The car was used for personal use and it was maintained as per manual given by the OPs with the car. The car started giving trouble since very beginning and upon complaints of the Complainant several parts of the car were being replaced but in spite of that, it is not giving trouble free service. After purchasing the car, its alternator failed to work at Shahjahanpur and the Complainant lodged the complaint with the OP No.3 immediately and upon its advice the alternator was replaced on 25.10.2003 by M/s Megha Motors at Bareily, the authorised service station of the OP No.1 and 2 at Bareily. When the Complainant’s brother was at Gorakhpur for his personal work, its power steering pump failed on 26.03.2004 and it was replaced by M/s Subhash Motors Dharamshala Road, Gorakhpur which was very dangerous because the steering failed to work immediately. The life of the persons who were in the car was at stake. The shockers of the same car have been replaced twice but even then they are not working well. The suspensions of the car are also not working well and the tyres of the car have been damaged within this short period. The Complainant has several times written to the OPs regarding improper service of the car. On 28.08.2004 the OP No.4 serviced the vehicle, delivered on 04.09.2004 and changed different parts including assembly of power steering pump. But not completed other job connecting with this. Due to this Complainant’s brother again got involved in an accident while the power system failed when he was going to Varanasi on 08.09.2004, there again authorised service station of OP No.1 and 2 serviced the vehicle and changed the connecting parts which were not changed by OP No.4 on 28.08.2004. The car given by the OPs is defective and it is not giving trouble free service and it has become quite impossible for the Complainant to travel by the aforesaid car without any tension. The OPs have sold the defective piece of car to the Complainant. The Complainant purchased a luxury car upon
-3-
the advice of OP No.3 and representation made by the OP No.1. The Complainant is facing mental agony in spite of investing a huge amount of money on a luxury car, hence this complaint.
The OP No.1 and 2 has filed the WS wherein it is submitted that the Complainant has concealed the material facts and that he is not the consumer within the meaning of term consumer under the Consumer Protection Act. The Complainant had run the vehicle for about 39000 kms within the first year of its purchase, therefore it is apparent that the vehicle being used for commercial purposes, therefore he is not a consumer as per the well settled law. Besides this complaint is bad for misjoinder of parties as the Complainant has not impleaded the alleged Mega Motors, Bareilly and Subhash Motors, Gorakhpur where he has claimed to have had alleged repairs. The complaint does not disclose a cause of action against the answering OPs. Under the conditions of the warranty the Complainant did not get the vehicle’s service under the prescribed period of service, therefore warranty has become null and void. Besides it was quite possible that the Complainant might have serviced his vehicle from unauthorised service station which is not recommended by the Tata Motors Ltd. Besides the answering OPs operating on a principal to principal basis with OP No.3, therefore the answering OP is not responsible for any act, omission and commission on the part of OP No.1. The vehicle is of the highest quality and sold to the satisfaction of the Complainant. The Complainant has not filed any documentary proof in support of his contention that the vehicle had any defect, besides no expert opinion has been filed by the Complainant. Besides the vehicle in question was purchased by the Complainant on 17.04.2003 where it was registered on 12.09.2003, hence the Complainant has to provide the reasons for the said delay. From the records, it is evident that the Complainant is not using the car for his personal use but he is
-4-
using it as a Taxi for the business purposes. It is run for a distance of 57732 km within a short span of about a year which is an indication of the fact that it was used for a commercial purpose and this also shows that the car was running properly and that there was no problem in that. The Complainant himself has admitted that he took his vehicle to the workshop of Mega Motors, Bareilly where after inspection the alternator was replaced and after being satisfied the Complainant had taken the vehicle. Even though the Complainant had covered a distance of more than 34588 kms but he did not get the required services done. The Complainant had also brought his vehicle with the complaint of shocker problem at 42888 kms at the workshop of OP No.3 where the rear shock absorber was replaced. The Complainant has stated in his para 9 that the vehicle was brought at the workshop of OP No.4 for servicing of the vehicle whereas it was brought for the accidental repairs after the vehicle had met with major accident and this fact has been wilfully concealed by the Complainant. At that time the vehicle had covered a distance of 57732 kms and many parts were damaged including the steering pump. It is denied that the job on the vehicle was not completed and it is a blatant lie on the part of the Complainant. In fact the Complainant had taken the delivery of the vehicle only after he was satisfied with the job performed on the vehicle. The Complainant has mentioned that the vehicle had again met with an accident while going to Varanasi but it has not mentioned the name of the said authorised service station, hence the OP is not in a position of verify the true facts. The Complainant has also tried to accommodate the losses of the other parts to be covered by the Insurance Company and it was not his intention to pay the depreciation cost from his pocket. The complaint has been filed by the Complainant with mischievous intentions to prejudice the minds of the Hon’ble Court and it is malafide and vexatious and hence it should be dismissed.
-5-
Notices were issued to OP No.3 and 4 but none appeared, hence the case proceeded exparte vide orders passed on 07.09.2005 against OP No.3 and 4.
The Complainant has filed his affidavit with 28 papers and 12 papers with the complaint. The OP No.1 and 2 have filed the Counter affidavit of Sri M.S. Pradeep, Senior Officer (Law).
Heard Counsel for the parties and perused the entire record.
Now, it is to be seen as to whether the Complainant used the vehicle for commercial purposes, hence the Complainant is not a consumer under the Consumer Protection Act and hence the complaint is maintainable in this Forum or not. Another point raised by the OPs is that the Complainant has not brought the vehicle service records to prove that he has observed all the conditions of the warranty as the Complainant had not got free service done and hence the OPs are not liable for deficiency in service because of the violation of the conditions of the warranty and whether the Complainant’s vehicle became defective many a times and even though the defects were rectified but still it did not give satisfactory service, therefore the Complainant was sold out a defective car by the OPs. If so, whether the OPs have committed unfair trade practice and deficiency in service or not.
The OPs have taken the stand that the vehicle was being used for commercial purposes, hence the Complainant is not the consumer under the Consumer Protection Act and in support of their contention, the OPs have taken the ground that within a period of just one year the vehicle had covered a distance of 57732 kms and that it used to go to several places Kanpur, Banaras, Gorakhpur, Lucknow and therefore it cannot be said that vehicle was used for private purposes. From the record, it transpires that this is the only ground to show that the vehicle was being used as a Taxi. No other evidence has been
-6-
filed to show that the vehicle was being used as taxi. This does not appear to be a sufficient ground for assuming that the vehicle was being used for commercial purposes because it has covered a distance of 57732 kms in the span of a year. There are a number of cars which are used privately and they cover a lot of distance as per the usage by their owner but it does not necessarily mean that those cars are being used as Taxi for commercial purposes. Therefore, there does not appear to be any merit in this contention of the OPs that the vehicle was being used for commercial purpose and hence the Complainant is not a consumer under the Consumer Protection Act.
The OP No.1 and 2 have taken the stand that the vehicle was not brought for free service and therefore there was violation of the conditions of the warranty and in this regard they have taken the stand that the Complainant has not submitted the vehicle’s service record for proving the point that he had observed all the conditions of the warranty. There is no substance in the contention of the OP No.1 and 2 that since the Complainant has not filed the vehicle’s service record, therefore it is clear that the Complainant had not observed all the terms and conditions of the warranty because the OPs themselves can file the copies of the service records etc. to prove that the Complainant had not observed all the conditions of the warranty including availing of free service. Therefore, it cannot be said that the Complainant failed to observe the conditions of the warranty.
Now, we come to the main issue as to whether the vehicle in question became defective many a times and therefore it was a defective piece sold out by the OPs to the Complainant and therefore they have committed unfair trade practice and deficiency in service. In this regard, we find that the OPs themselves admitted that the vehicle had been repaired in Mega Motors, Bareilly where the alternator was replaced and then at the Subhash Motors, Gorakhpur the vehicle was
-7-
given for repairs for rectifying the failed power steering pump. The complaint of shocker problem where the shock absorber was replaced has also been admitted by the OPs. Thus, on a number of occasions within span of a one year when the vehicle became defective and its parts were replaced by the OPs. On one of the occasions when its power steering pump failed then it could have really been disastrous for the persons sitting in the car at that time as according to the Complainant that the steering had stuck up. All these instances of the repairs and the replacements show that the vehicle became defective many a times during a span of one year but so far as the vehicle having manufacturing defect is concerned the Complainant has not been able to file any expert opinion whereby it could be discerned that the vehicle was having a manufacturing defect. Therefore, it cannot be said positively that the vehicle was having a manufacturing defect and unless it is proved that the vehicle was having a manufacturing defect, the manufacturers cannot be made liable to replace the car with a new one. But from the evidence on record it is clear that the vehicle of the Complainant became defective many a times and he had suffered a lot because of the time and money spent on the problems of the vehicle. The trauma of the persons sitting in the car can well be gauged when there was sudden failing of the power steering pump as it could have really been disastrous and fatal. The Complainant therefore has certainly been much harassed mentally and physically in getting the repairs of the vehicle many a times. Therefore, the OPs to that extent are deficient in providing the services as the vehicle became defective many a times within a short span of one year of its purchase. Therefore, the Complainant is not only entitled to get back the amount spent on repairs but also entitled to get compensation for the physical and mental harassment caused to him. The Complainant is also entitled to
-8-
the cost of the litigation as the litigation has stretched over 10 years.
ORDER
The complaint is partly allowed. The OPs are jointly and severally directed to pay the amount of Rs.24,282.00 (Rupees Twenty Four Thousand Two Hundred Eighty Two Only) with 9% interest from the date of filing of the case till the final payment is made to the Complainant.
The OPs are also directed to pay Rs.10,000.00 (Rupees Ten Thousand Only) as compensation and Rs.5,000.00 (Rupees Five Thousand only) as the cost of the litigation to the Complainant. The compliance of the order is to be made within a month.
(Anju Awasthy) (Vijai Varma)
Member President
Dated: 3 August, 2015
